Conte v. Univ. of Med. & Dentistry of N.J.

DR. MICHAEL CONTE, Plaintiff-Appellant, v. UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY (UMDNJ);RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, RUTGERS SCHOOL OF DENTAL MEDICINE;DR. CECILE A. FELDMAN, Dean, Rutgers School of Dental Medicine; ANDREA WEST, COOof Rutgers School of Dental Medicine; LISA GROSSKREUTZ, Director ofOffice of Employment Equity of Rutgers; and JENNIER HELLSTERN, Defendants-Respondents.

DOCKET NO. A-0871-17T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued October 23, 2018

December 17, 2018

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Yannotti and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5285-15.

Gerald Jay Resnick argued the cause for appellant (Resnick Law Group, PC, attorneys; Gerald Jay Resnick, on the briefs).

Tricia B. O'Reilly argued the cause for respondents (Walsh Pizzi O'Reilly Falanga, LLP, attorneys; Tricia B. O'Reilly, M. Trevor Lyons and Kristin Spallanzani, on the brief).

PER CURIAM

Plaintiff appeals from an order entered by the Law Division on September 29, 2017, which granted summary judgment in favor of defendants and dismissed plaintiff's complaint with prejudice. We affirm.

I.

In 1993, plaintiff began his employment with the University of Medicine and Dentistry of New Jersey (UMDNJ or the University) as a clinical dentist. He later held various positions at UMDNJ. In 2007, plaintiff was appointed Director of the Office of Faculty Practice (FP), a private dental practice operated by Rutgers School of Dental Medicine (RSDM), and in 2013, plaintiff was appointed Senior Associate Dean in Clinical Affairs, an administrative position. In those capacities, plaintiff reported to Cecile A. Feldman, DMD, MBA, the Dean of RSDM.

On May 20, 2014, plaintiff met with W.P.D., an employee at FP, regarding allegations by R.A., another FP employee, that W.P.D. assisted students in cheating and stealing University property.¹ Plaintiff offered W.P.D. the opportunity to resign to save his pension. W.P.D. rejected this offer. W.P.D.'s representative suggested that W.P.D. file a formal complaint.

On May 27, 2014, W.P.D. filed a discrimination and harassment complaint with the Rutgers Office of Employment Equity (OEE). The complaint charged R.A. with making disparaging comments to him based on his sexual orientation. The complaint included allegations that plaintiff made similarly inappropriate comments.

In April 2014, plaintiff was informed that S.W., an employee at FP, lied about her work history on her employment application. On June 9, 2014, S.W. sent a letter to Feldman alleging that plaintiff acted inappropriately during a meeting to discuss this allegation, and on June 17, 2014, S.W. filed a discrimination and harassment complaint against plaintiff and another individual.

On that same day, Feldman called plaintiff while he was on a business trip out of state. Feldman told plaintiff he was being replaced as Director of FP.Feldman made this decision after consulting with Lisa Grosskreutz, Director of the OEE, and Andrea West, Chief Operating Officer of RSDM. Feldman based her decision on a RSDM policy of removing supervisors when complaints of discrimination and harassment are submitted. Feldman memorialized her conversation with plaintiff in an email sent to plaintiff that day.

The next day, Feldman sent an email to members of FP stating, "Effective immediately, Dr. August Pellegrini will assume the directorship of [FP]. In addition, Mrs. Leilani Otuafi will assume the program administrator position. Ongoing, all business related matters should be directed to Dr. Pellegrini and Ms. Otuafi until further notice."

At her deposition, Feldman testified that she sent the email to "all individuals who are associated with the [FP]." This included individuals who treated patients either at FP or at University Hospital. Two days later, Pellegrini sent an email to members of the FP stating that the OEE was conducting an investigation of events that allegedly occurred at FP and that the investigation was confidential.

When he was deposed, plaintiff testified that on the first Monday after he returned from his business trip, three individuals asked him about his removal. Plaintiff stated "that word spread like wildfire through the dental school."

On June 23, 2014, Grosskreutz sent plaintiff an email notifying him of S.W.'s complaint. Plaintiff was allowed to respond. In his response, plaintiff stated that he had "never discriminated against nor ha[d he] ever harassed [S.W.]" He also stated that S.W.'s letter "was filled with inflammatory misleading statements, which [had been] taken out of context with the actual events."

On July 7, 2014, W.P.D. amended his complaint and named plaintiff as a respondent. Plaintiff was provided with the amended complaint and permitted to respond. In his response, plaintiff asserted that he "never discriminated against [or] . . . ever harassed [W.P.D.]" He stated that W.P.D.'s "complaint [was] filled with exaggerations, mistruths, [and] misleading statements which are taken out of context with the actual events, and in some cases [are] direct lies."

In October 2014, Grosskreutz provided plaintiff with a copy of the investigation reports regarding W.P.D. and S.W.'s complaints, which were prepared by Jennifer Hellstern, the Associate Director of the OEE. Hellstern had interviewed various individuals including plaintiff, and considered plaintiff's written responses to the complaints. Hellstern found that plaintiffviolated UMDNJ's policy prohibiting discrimination and harassment with regard to W.P.D., but found no such violation regarding S.W.

Plaintiff was permitted to respond to the reports. Plaintiff provided Grosskreutz a written response to the report about W.P.D.'s complaint. He asserted that W.P.D. had filed the complaint in retaliation for their conversation regarding the allegation that W.P.D. assisted students in cheating and stealing University property. Plaintiff also claimed his statements were taken out of context, and he did not make any statements with prejudicial intent.

On October 21, 2014, Grosskreutz issued a preliminary report addressing W.P.D.'s complaint. She accepted Hellstern's finding that plaintiff violated the University's policy against discrimination and harassment with regard to W.P.D. Plaintiff was provided a copy of the report and allowed to respond. He did not do so. Thereafter, Feldman met with plaintiff to discuss W.P.D.'s complaint.

On November 25, 2014, Feldman sent plaintiff a letter in which she "concluded that the allegations made against [plaintiff were] credible . . . and that [his] conduct violated the University's [p]olicy [p]rohibiting [d]iscrimination and [h]arassment." Feldman stated that she intended to remove plaintiff from his position as Director of FP. She also intended to remove plaintiff from his position as Senior Associate Dean for Clinical Affairs atRSDM and reduce his salary. Feldman advised plaintiff, however, he could remain as Senior Associate Dean if he engaged an executive management coach.

Feldman provided plaintiff with another opportunity to submit information regarding the complaint. Plaintiff asked Feldman to reconsider her decision and he sent her a lengthy response in which he detailed thirty-seven concerns he had with the investigation. Feldman responded on December 30, 2014. She stated that she was out of the office and any final action would be deferred until January 2015. Feldman met with plaintiff on January 9, 2015. She reaffirmed her decision to remove plaintiff from his position as Director of FP; however, she decided that plaintiff could remain as Senior Associate Dean, and his salary would not be reduced.

After he was removed from his position as Director of FP, plaintiff had ongoing issues with Pellegrini at FP. Plaintiff claimed he was not receiving a full calendar of patients. As a result, plaintiff resigned from FP. Plaintiff contends that his removal as Director of FP has ruined his reputation, since he now has to indicate on his curriculum vitae (CV) and inform persons who ask that he was removed as Director.

On September 8, 2015, plaintiff filed a complaint in the trial court against UMDNJ, Feldman, Grosskreutz, Hellstern, and West. Plaintiff allegeddefendants deprived him of his liberty interest in protecting his good name and reputation, in violation of Article 1, Paragraph 1 of the New Jersey Constitution. Plaintiff claimed he was removed from his position as Director of FP without "even being apprised of the particulars of . . . complaint[s] filed against him[.]"

Defendants filed a motion to dismiss the complaint pursuant to Rule 4:6-2(e), for failure to state a claim upon which relief can be granted. The trial court denied the motion. Following discovery, defendants filed a motion for summary judgment. After hearing oral argument by counsel, the judge granted the motion and entered an order memorializing her decision.

The judge found that plaintiff had failed to establish that he had a constitutionally-protected liberty interest because there was no evidence defendants had publicly disseminated any damaging information about him. The judge further found that even if plaintiff was entitled to due process with regard to his removal from the position as Director of FP, he had been provided with all of the process due. In addition, the judge determined that plaintiff had not presented sufficient evidence to impose liability upon the individual defendants.

The judge filed an order dated September 29, 2017, granting summary judgment in favor of defendants and dismissed the complaint with prejudice. This appeal followed.

II.

On appeal, plaintiff argues he presented...